The Need for a Theoretical Base: Four Arguments

This chapter begins the work of testing historical arguments on the value of equal access to justice against the desiderata for any theory of equal access to justice identified in the first chapters. The chapter studies four arguments. First, the value of equal access to justice, this chapter argues, could be understood as an implication of the ideal of government by consent. Second, the value of equal access to justice could be understood as an idealization of adversary proceedings in adjudication, as the best (or standard) method for dispute resolution. Third, equal access to justice could be understood as a welfare-right—that is, as an entitlement on claim-making under the law, which should complement broader institutional transformations in the mechanisms of resource-distribution in a given society, and which is itself designed to protect or maintain fair patterns of resource-distribution. Fourth, the value of equal access to justice could be understood as implicated by the ideal of the rule of law. Each of the received arguments provides important insights on how to understand the value of equal access to justice. Also, each of the argument makes abundant use of, and explains or refines, one or more of the interpretations of equal access to justice, identified in Chap. 3 . And yet each of them fails because neither one can provide a coherent and systematic understanding of all three interpretations.